Minnesota
Weakens Federal Pesticide Laws; Court Rules In Favor
(Beyond Pesticides, March 4, 2004) On February, 14
the Minnesota Court of Appeals made a ruling based on the state’s
interpretation of the “Bee Caution” portion of a pesticide
label that plaintiffs claim is inconsistent with and in violation of
the U.S. Environmental Protection Agency’s (EPA) interpretation
and intention of the label.

Judge Hudson of
the Minnesota Court ruled in favor of International Paper Co. (IP) and
The Minnesota Department of Natural Resources Forestry Division (DNR)
who used or advised to use Sevin XLR Plus Carbaryl,
a carbamate nerve toxin pesticide highly toxic all living things including
bees. DNR advised IP to use the highly controversial pesticide, considered
to be one of the most toxic and hazardous on the market, even though
the agency also identified the much less toxic Bascillus Thuringiensis
(BT) as a viable alternative for the cottonwood leaf beetles plaguing
IP’s poplar plantations.

Precisely around
the same time that IP began using the Carbaryl insecticide Sevin
XLR Plus manufactured by Bayer CropSciences, neighboring beekeepers
began to notice in 1998 that many of their young bees and broods were
dying. Beekeepers nationwide are reporting
an alarming decline in the pollinator population.

One of the primary
contentions in the case is over the interpretation of the “Bee
Caution” portion of the insecticide’s label that reads,
“This product is highly toxic to bees exposed to direct treatment
or residues on blooming crops or weeds---Do not apply this product or
allow it to drift to blooming crops or weeds if bees are foraging in
the treatment area.”

Judge Hanson ruled
against the beekeepers and based his opinion almost solely on the interpretation
of the “Bee Caution” portion of the pesticide label as provided
by Paul Liemandt, director of the Minnesota Department of Agriculture
Pesticide Enforcement Section (MDA). Liemandt states that, "…in
order to be in violation of the label and in violation of the law, an
applicator would need to spray Sevin XLR Plus at a time where there
were a significant number of bees actively foraging in the treatment
site….”

Jeffrey Anderson,
the lead plaintiff in the case, argues that Liemandt’s interpretation
of the label runs counter to an EPA manual for label interpretation
and that such an interpretation is “gutting portions of insecticide
labels and weakening protection for pollinators protected by the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA)” under
the EPA. “MDA deleted the word residues, and made no attempt to
clarify what constituted significant numbers of either plants or bees.
Further, in their investigations MDA never looked for foraging bees
on the blooming plants,” says Anderson.

“…The
EPA manual requires that, for Class One pesticides with Extended Residual
Toxicity (ERT), the label prohibits spraying if bees are ‘visiting’
the spray areas. But for less toxic non-ERT pesticides, the label prohibits
spraying if the bees are ‘actively visiting’ the spray area,”
reads a legal
brief of the case. The plaintiffs “argue that Sevin is an
ERT pesticide and that ‘visiting,’ rather than ‘actively
visiting,’ is synonymous with ‘foraging.’” Thus,
appellants contend that unlike the term ‘actively visiting,’
the terms ‘visiting’ and ‘foraging’ do not require
that a significant number of bees are present during or shortly after
the spraying of Sevin for a violation of the Sevin label.

“Liemandt
added two very subjective words in his interpretation – significant
and actively,” says Steve Ellis, another plaintiff in the case.
Ellis also points out that starting in April of this Year, Mr. Liemandt
will be the President of the American Association of Pesticide Control
Officers (AAPCO) and that in 2000, AAPCO lobbied heavily with EPA to
get bee caution label changes to include the exact wording “significant
number of actively foraging bees” and “significant amount
of blooming plants.”

Among the reasons
the Judge used to rule against the beekeepers cited in the legal brief
were that “…the EPA manual that appellants rely on uses
the terms ‘visiting’ and ‘actively visiting’
and the Sevin label uses the term ‘foraging’,” and
“…during his consultation with the EPA, the MDA investigator
was specifically told that ‘foraging’ meant ‘actively
visiting’ not ‘visiting.’”

Although aware of
the situation, the EPA has not yet made a public statement on the case.
“The EPA is standing by, unwilling to step to the plate and enforce
federal law,” says Anderson.

“We need to
get the word to U.S. EPA that FIFRA and environmental cautions on labels
need to be enforced to protect as they were intended,” says Steve
Ellis. “EPA needs to review actions by state agencies such as
MDA to determine if indeed they are doing their job or as in the case
of Minnesota, not doing their job.”

Pollination, or
the transfer of pollen grains to fertilize the ovaries of flowers, plays
an essential role in both the production of agriculture (particularly
all fruit and grain crops) and the existence of a healthy ecosystem.
There are over 100,000 invertebrate species — such as bees, moths,
butterflies, beetles, and flies — that serve as pollinators worldwide.
Recent declines in bee populations throughout North America have led
to critical shortages and lost crops, which most believe is a direct
result of pesticides use. The pollinators industry, estimated to be
around $40 billion per year, has been fighting a similar court battle
with the chemical industry and EPA on the use imidacloprid
(see also Daily News story).

TAKE
ACTION: If you are concerned about the ruling of this
recent court case, the protection of pollinators under FIFRA, the continued
unnecessary use of Carbaryl, or about EPA’s failure to enforce
FIFRA label laws (which provide the bare minimum of protection), please
contact Mr. Tony Britten of the EPA’s Office Of Prevention, Pesticides
And Toxic Substances by email
or phone: 703-308-8179 and Mr. Michael Leavitt, EPA Administrator, by
email, phone: 202-564-4711
or fax: 202-501-1470.